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Trivia: Ad Hoc Judges in Agreement

Published on September 16, 2012        Author: 

Many international tribunals allow for States to appoint ad hoc judges in cases involving that State and where no national of the State is a judge on the Court. It is often said that these judges (and judges of the nationlity of parties)  vote in line with the State that has appointed them (or whose nationality they hold). This seems to be true in the majority of cases. However, it is worth nothing that (i) it is not true in all cases and (ii) in most cases the ad hoc judge votes together with the majority so it is perhaps not remarkable that they vote in favour of the appointing State.

However, this popular wisdom suggests that where there are two ad hoc judges appointed by opposing States in the case, the ad hoc judges will vote in opposite ways. This is probably true in the majority of cases, but it is not always true. This leads to my question:

In which cases before an international tribunal have ad hoc judges appointed by opposing States voted for the same result?

Obviously, I am including the International Court of Justice in the question but I would also include the International Tribunal for the Law of the Sea or any other tribunal in which opposing States can appoint ad hoc judges. I would also be prepared to accept as within the scope of my question cases in which an ad hoc judge appointed by one party voted for the same result as a judge of the nationality of the other party. Or even cases where judges that have the nationalities of opposing parties vote for the same result.

I realise that “voted for the same result” is a bit ambiguous. What I mean is that both ad hoc (or national) judges wanted the same outcome from the judgment. However, I don’t mean that both of them simply voted against the judgment because neither particularly liked it, though for different reasons. Also,  in cases where the tribunal’s dispositif may include several points, it is possible for ad hoc judges to agree on some of the minor points. What I really want to know is whether on core issues, the ad hoc judges have agreed.

I also have a follow up or bonus question:

Have ad hoc judges appointed by opposing States ever written a joint opinion with each other?

Again, answers in the comments box below please.

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3 Responses

  1. K-a

    Tunisia/Libya (1982)?

  2. Tamás Hoffmann

    Another interesting question!

    After a quick perusal of the ICJ jurisprudence, I have found a few cases which fall within the scope of this question.

    First of all, there are three unanimous judgments where the ad hoc judges obviously agreed about the final result:

    APPLICATION FOR REVISION AND INTERPRETATION OF THE JUDGMENT OF 24 FEBRUARY 1982 IN THE CASE CONCERNING THE CONTINENTAL SHELF (TUNISIA/LIBYAN ARAB JAMAHIRIYA) (TUNISIA v. LIBYAN ARAB JAMAHIRIYA)
    JUDGMENT OF 10 DECEMBER 1985

    CASE CONCERNING THE FRONTIER DISPUTE
    (BURKINA FASO/REPUBLIC OF MALI)
    JUDGMENT OF 22 DECEMBER 1986

    Maritime Delimitation in the Black Sea (Romania v. Ukraine)
    Judgment of 3 February 2009

    I have found three cases where the ad hoc judges (or the regular judge and the ad hoc judge) concurred on all issues even though the voting was not unanimous:

    CASE CONCERNING OIL PLATFORMS (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES OF AMERICA)
    JUDGMENT OF 6 NOVEMBER 2003

    CASE CONCERNING THE CONTINENTAL SHELF
    (LIBYAN ARAB JAMAHIRIYA/MALTA)
    JUDGMENT OF 3 JUNE 1985

    CASE CONCERNING DELIMITATION OF THE MARITIME BOUNDARY IN THE GULF OF MAINE AREA
    (CANADA/UNITED STATES OF AMERICA)
    JUDGMENT OF 12 OCTOBER 1984 GIVEN BY THE CHAMBER CONSTITUTED BY THE ORDER MADE BY THE COURT ON 20 JANUARY 1982

    Now comes the tricky part. There are a few cases where the ad hoc judges agreed on most (or some) of the relevant questions. I would thus include:

    DISPUTE REGARDING NAVIGATIONAL AND RELATED RIGHTS
    (COSTA RICA v. NICARAGUA)
    JUDGMENT OF 13 JULY 2009
    (Judge ad hoc Guillaume and Judge Cancado Trindade voted together on all issues, save for Count 4.)

    CASE CONCERNING AVENA AND OTHER MEXICAN NATIONALS
    (MEXICO v. UNITED STATES OF AMERICA)
    JUDGMENT OF 31 MARCH 2004
    (Judge Buergenthal and Judge ad hoc Sepulveda agreed on almost all questions.)

    CASE CONCERNING CERTAIN QUESTIONS OF MUTUAL ASSISTANCE IN CRIMINAL MATTERS
    (DJIBOUTI v. FRANCE)
    JUDGMENT OF 4 JUNE 2008
    (Judges ad hoc Guillaume and Yusuf agreed that France “failed to comply with its international obligation under Article 17 of the Convention on Mutual Assistance in Criminal Matters between the two Parties”.)

    I was too lax to check out the PCIJ jurisprudence but I suspect that there are some interesting cases there as well…

  3. Tamás Hoffmann

    As two Question Number 2, the answer is yes. However, the only example I have found is from the jurisprudence of the International Tribunal for the Law of the Sea, a really recent case:

    Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar)
    Judgment of 14 March 2012
    Joint declaration of Judges ad hoc Mensah and Oxman

    (By the way, this makes Bernard H. Oxman – at least to my knowledge – the only ad hoc judge to completely agree with the ad hoc judge appointed by the other party to the litigation in two different cases, the other being Maritime Delimitation in the Black Sea (Romania v. Ukraine) case.)